Contributions and Limitations of the Sex Discrimination Act at the Workplace Level
Dr Sara Charlesworth,
Centre for Applied Social Research, RMIT
Any review of the Sex Discrimination Act (SDA) needs to include its influence on the ways discrimination is understood and dealt with at the workplace level. Despite the complaint-handling mechanisms of the SDA, relatively few gendered grievances are pursued outside the workplace. Thus the understandings of discrimination and equal employment opportunity (EEO) reflected in the internal workplace management of such grievances play a critical role in determining just how effective the framework of the SDA can be in redressing discrimination. Beyond individual workplaces, understandings of what constitutes sex discrimination also shape the extent to which women's workplace disadvantage is seen as an industrial issue, if at all, and the ways in which this might be addressed.
I will draw on research, particularly in local government and the banking industry, to briefly highlight the contributions and limitations of the SDA in the workplace in two areas:
Firstly, the influence of the education and inquiry roles of HREOC under the SDA
Secondly, the influence of the SDA framework on the in-house management of sex discrimination complaints.
In my 15 minutes today, the main point I want to make is that the SDA operates in a political, institutional, social and workplace context. Its possibilities, contributions and limitations are as much shaped by changes in that context as the actual content of its legislative provisions.
Let's go back to 1990. In Victorian local government the enactment of the SDA, together with the Victorian Equal Opportunity Act, had led to an acceptance both by the employers and the then Municipal Employees Union [MEU] that the historical undervaluation of home care work in local government was an industrial issue that needed to be addressed.
Home care workers, who provide both practical and personal care for many frail aged and disabled people, had been until the end of the 1980s paid at the one fixed rate, the lowest in the relevant award. In 1991, a painstaking work value comparison was undertaken of the work performed by these overwhelmingly female workers with that performed by the traditionally male parks and gardens employees. This analysis was seen by the MEU as providing tangible evidence of 'unfairness' - a concept that the industrial parties have always found it easier to grasp than 'discrimination'. The work value analysis contributed to the 'unpacking' of the home care classification into three levels via the award restructuring process. This unpacking addressed some important contributors to the historical undervaluation of the caring work performed by these home care workers, including the traditionally low weighting given to caring skills in comparison to technical skills such as plant and machine operation. Importantly, it also provided a career structure.
The implementation of the resulting award was imperfect in many respects, not least because of the 'translation' process into the new Award. However in 1991/92, HREOC's Inquiry into Sex Discrimination into Overaward Payments[1] provided the context in which the legacy of overaward payments to traditionally male occupations and not to the female community service occupations became the subject of industrial negotiations to provide a more gender equitable overaward payment for all staff. These possibilities however were suddenly cut short, both by the move to enterprise bargaining and in Victoria, by the introduction of compulsory competitive tendering (CCT) into local government by the incoming Kennett government.
Within this changed industrial and political context, attention turned from what were seen as the interests of a peripheral part-time workforce to preserving the full-time jobs of the predominantly male outdoor workers. While the Union supported home care workers to put together in-house bids to preserve their jobs in the CCT process, they had little to trade-off and in a number of instances were forced to tender for their jobs by giving up the wages and the career structure they had so recently won.[2] Likewise enterprise bargaining, both in local government and more generally, became a process of trading-off conditions for wage increases. A process which has disadvantaged those working in female dominated industries and occupations, who, because of the historical undervaluation of feminised work, have had little to bargain with in terms of so-called 'inefficiencies' and working time flexibility.
Throughout the 1990s, HREOC's Sex Discrimination Unit worked hard to raise awareness of sex discrimination issues in the industrial relations arena, particularly around enterprise bargaining and the role of unions. It also undertook a review of both direct and indirect discrimination in awards. However the industrial and political context was changing fast and with the introduction of the Workplace Relations Act by the incoming Howard government in 1996, the importance of awards was down-graded. The issue of discrimination in enterprise and individual agreements, while raised by women's groups and some unions, was displaced by seemingly more urgent issues and a political and policy agenda in which the attainment of even a limited EEO was balanced against the costs of compliance, as we saw in the review of the Affirmative Action Act in 1998. I will come back to this issue shortly.
Given this environment, the importance of the last two major inquiries undertaken under the SDA, on pregnancy discrimination[3 ] and the proposal for a national paid maternity leave (PML) scheme[4] cannot be underestimated. Such public consultations not only place EEO issues on the public agenda, but also influence what is seen as discrimination and as EEO measures within workplaces. The increase in pregnancy and 'motherhood' related complaints following the pregnancy discrimination inquiry and the community debate that followed HREOC's PML proposal are testament to that. The practical outcomes of those inquiries are of course limited by the political responses to them, as we have seen in the last few months with both major political parties squibbing on the very minimal PML scheme proposed by HREOC. Interestingly however, in some recent case study work I have undertaken across a number of best practice organisations, it was the public debate around PML that provided the impetus for the introduction or increase in the quantum PML in three of these companies. While such individual enterprise-based initiatives are a poor substitute for a national scheme, and often have eligibility criteria that restrict their practical effect, their introduction suggest that employers and management are susceptible to what are seen as community expectations of 'the right thing to do', particularly where promoted by government agencies such as HREOC.
Let's move now to the late 1990s and to workplaces in the banking industry. Between 1997 and 2000, I undertook research examining the impact of the jurisdictional overlap created between the SDA and federal industrial relations legislation on the resolution of women's workplace grievances. Amongst other things the study included:
an analysis of confidential conciliation files relating to complaints by banking industry employees lodged under the SDA.
more than 50 interviews conducted with women workers, and managers from three Australian major banks as well as union representatives.
I want to draw on part of this research to highlight how legal norms around discrimination and EEO compete with organisational and managerial norms in the workplace. In particular I want to draw attention to the paradoxical effects of the EEO business case in shaping understandings of discrimination and EEO in ways that can work to undermine the effectiveness of anti-discrimination law such as the SDA.
All of the major banks have extensive EEO or diversity policies and designated EEO or diversity managers. Grievance structures are well established and formalised in awards and agreements across the banking industry. The prohibition of sex discrimination in the SDA and other state anti-discrimination jurisdictions provides the rationale for these EEO/diversity policies and informs the grievance resolution process. Both create an important space for women to articulate and pursue claims of gendered treatment. In particular, the legal liability of an organisation in respect to sexual harassment means that where formal complaints are made it is taken very seriously.
However the concern with legal compliance in banking is mediated through a culture of risk management, where risk to the organisation can become the central concern. From the mid 1990s, the increasing use of a 'business case' rationale to encourage compliance with EEO and anti-discrimination regulation more generally has also contributed to a view, not only in banking, that such compliance is contingent on it meeting organisational interests
This contingent understanding of EEO and anti-discrimination law is evidenced in management responses to workplace claims of discrimination in the workplace, which have relied on:
1. Assertions of what I call the 'immunisation' effect of workplace anti-discrimination and EEO policies -a 'we have a policy so it can't happen here' argument. In many ways, a claim of discrimination is perceived as an affront to policies designed to prevent it. This provides the organisational impetus to define the alleged discrimination away and argue that the behaviour, or detriment complained of, falls outside the parameters of that policy. Where some detriment may be conceded, the blame may be laid at the door of 'poor management', where it may be argued that an individual manager erred and that the discrimination alleged was an isolated incident, while at the same that it is not appropriate to discipline the manager in question.
Women's own failings may also be blamed, which can work to deflect any broader organisational responsibility for discrimination. This latter view is reflected in the remark of a senior female banking official: "Now young women are less patient with the status quo and tend to assume there is discrimination when they are not super confident."
The immunisation effect of anti-discrimination and EEO policies also raises the stakes of what is seen in the workplace as 'discrimination'. This is highlighted in the remark of a branch employee who described the difficulties she encountered in the workplace balancing her work and family responsibilities in the following terms: "People make assumptions because you are a parent…I have not felt so much discrimination myself, just a few subtle things like prejudging me."
2. Secondly, in management responses to in-house complaints discrimination may be 'reframed' as the inevitable consequences of choices made by women and/or the legitimate exercise of managerial prerogative, either of which somehow preclude any discriminatory effects. For example, while the work/family collision faced by many women is acknowledged, it is often seen as the consequence of a "personal choice" to have children and hence a personal rather than organisational concern when women experience difficulties with changes in working hours or location. Likewise, while the overtly male environment of certain work areas, such as dealing rooms, may be conceded, it may be also be seen as up to women to choose to "fit in" or not as suggested by one senior HR manager when she said "The culture in Treasury is not something a girl would find pleasant; but she doesn't have to work there."
Another alternative explanation for discrimination that is offered in response to claims of gendered treatment is the exercise of legitimate management prerogative to manage human resources in the interest of the organisation. In one instance, the failure to promote a woman to branch manager was justified on the basis that while she was qualified for this job, she was more suited to be an operations manager; a position for which she had not applied.
3. Thirdly, another organisational response to claims of discrimination may be the discounting of any discriminatory effects of the pursuit of commercial interests, as we saw in the Commonwealth Bank Case[5] . In that case, the Union alleged that a spill of all positions in the bank's retail branch operations in 1993/4 indirectly discriminated against women on extended leave, such as maternity and career break leave, by excluding them from applying for redundancy pay and/or being required to return to work within 4 weeks if they got new positions. In response, the bank argued that the right of the women in question to career break leave, paid maternity leave and a 'guaranteed' job on resumption from maternity leave should be balanced against any disadvantage experienced by them in the restructure.[6] Thus the rights to such EEO/family friendly provisions accessed by these women were used to both explain and justify their different treatment.
The primacy of commercial interests over any rights to EEO is not an idiosyncratic view confined to one bank or indeed the banking industry. It is reflected in the federal government and employer responses to the claims made by the ACTU in the work and family test case. It is argued that these claims, which would generalise some modest family friendly benefits particularly for women who remain the primary carers, are detrimental to business interests, particularly those of small business. The logical corollary is that any rights to gender equitable workplace benefits are contingent on them being deemed by individual employers to be in the interests of their business. Yet the government continues to insist, despite the mounting evidence of the sex discriminatory effects of enterprise and individual bargaining,[7] on "direct negotiation between employer and employee, taking into account the needs of both the worker and the workplace".[8]
The argument I am making here is that while anti-discrimination provisions such as in the SDA have been significant in naming the gendered treatment of women and in providing some redress for individual women, and in some instances groups of women like the home care workers, the concepts of discrimination and EEO on which they draw are not fixed. They can be invoked and reframed to hide the inequality the legislation purports to address as well as to limit the remedies it promises.
I have also argued that workplace discourses about discrimination have been limited by the political and policy context in which the 'business case' is used to sell EEO to employers. The EEO business case agenda is not concerned with the gender division of labour, power differentials between men and women or revaluing work at the bottom of the hierarchy. It is focused on the short-term business interests of employers, which are assumed to be compatible with EEO. Any tension between compliance with legal obligations under anti-discrimination law and management goals is rarely acknowledged. As a result, the business case for unequal employment opportunity and business advantages in women's disadvantage, such as in the gender pay gap and the sex segregation of part-time work, remain hidden from view.
Despite this perhaps bleak assessment, I am by no means advocating we should abandon the SDA as a piece of failed law reform. Rather I am making an argument for challenging the context in which it operates. As we have seen over the 20 years of the SDA's operation, this context is not fixed. Experience in the UK, particularly around equal pay and paid maternity leave suggests that properly resourcing institutions such as the Women's Equality Unit and the Equal Opportunity Commission, together with political support for such initiatives that openly promotes women's equality in employment, can create an 'equality climate' in which progressive action becomes possible. This might seem like a distant dream in the current Australian context. However some chinks in the neo-liberal policy armour are beginning to open up. HREOC, and in particular the Sex Discrimination Commissioner, have an important role to play in contributing to the recreation of a renewed equality climate in Australia. Building on the valuable work of previous inquiries and interventions before the Industrial Relations Commission, I would like to see HREOC address two outstanding issues for women workers; the gender pay gap, and the price women have to pay if they want to work reduced hours, not only in the short term but in the long term.
Endnotes
1. Human Right Australia (1992) Just Rewards: A Report of the Inquiry into Sex Discrimination in Overawed Payments AGPS, Canberra.
2. Interestingly a similar situation in the UK with dinner ladies employed by the North Yorkshire County Council was pursued by the relevant union and found to be discriminatory by the House of Lords under the UK Equal Pay Act. See Ratcliffe v North Yorkshire County Council [1995] IRLR 439).
3. HREOC (1999) Pregnant and Productive: It's a Right not a Privilege to Work While Pregnant HREOC, Sydney.
4. See HREOC (2001) HREOC (2002) A Time to Value: Proposal for a National Paid Maternity Leave Scheme, Sex Discrimination Unit, HREOC, Sydney.
5. Finance Sector Union v Commonwealth Bank of Australia (1997) EOC 92-877 (HREOC); Commonwealth Bank v HREOC (1998) EOC 92-908 (FCA).
6. Finance Sector Union v Commonwealth Bank of Australia (1997) EOC 92-889: 77246.
7. See for example Whitehouse, G. and Frino, B. (2003) 'Women, Wages and industrial Agreements' Australian Journal of Labour Economics 6(4), 579-596; Strachan, G. and Burgess, J. (2000) 'The Incompatibility, of Decentralised Bargaining and Equal Opportunity in Australia' British Journal of Industrial Relations 38(3), 361-381; Van Gramberg, B. (1999) 'Women, industrial relations and public policy' in L. Hancock (ed) Women, Public Policy and the State, Melbourne, MacMillan Education Australia.
8. Australian Government (2004) Family Provisions Case 2004: Contentions in Response http://www.workplace.gov.au/WP/Content/Files/WP/WR/WorkFamily/CommonwealthContentions.pdf Para 5.41.